Opinion
Submitted December 7, 2000.
January 16, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Fisher, J.), rendered April 7, 1999, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Kelli D. Lofton of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeanette Lifschitz, and Joel R. Meyers of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contention that the trial court usurped the jury's fact-finding function is without merit. The trial court's statement that no evidence had been presented that the defendant had the legal authority to sell cocaine was factually accurate. Moreover, that statement was consistent with the presumption that the sale of narcotics is unlawful (see, People v. Rodriguez, 58 A.D.2d 612; People v. Strong, 47 A.D.2d 798, affd 42 N.Y.2d 868), as well as with the defendant's right to present evidence of any legal authority he might have had to sell cocaine (see, Public Health Law § 3396; People v. Rodriguez, supra). Additionally, the defendant was not prejudiced by the trial court's remark, since the trial court repeatedly instructed the jurors that their recollection of the evidence was controlling.